Mediation and litigation: is it either/or?

Mediation is often referred to as a form of “alternative dispute resolution” or ADR. Though some question whether traditional litigation is now the more “alternative” approach, and mediation and arbitration the more common, there’s another point to consider. Once you have embarked on a course of litigation, is there a point of no return, when it’s not possible to employ mediation?

In a word, “no”. Although even where mediation is not required before parties can pursue litigation, the time to mediate frequently occurs before a lawsuit is filed — or when court action is extremely unlikely. Yet parties can turn to help from a mediator well into the litigation process. The period of time just before trial is often ripe for mediation, but even cases on appeal are mediated.

A recent example is the “Bong Hits 4 Jesus” case that began with a school suspension in Juneau, Alaska in 2002. Last year the United States Supreme Court ruled against the student on federal grounds. I knew the case well: in January, 2007, it was the source of the moot court problem for my section of UCONN Law first-year students’ briefs. Now the case is back before the Ninth Circuit Court of Appeals for consideration of the student’s state constitutional claim and the parties are involved in mediation ordered by that court.

Mediation can still resolve disputes, even when a portion of the original conflict is resolved, or when there is a litigated result that is not yet final.

Posted in ADR: Dispute Resolution Processes, Thursday, February 28th, 2008

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